Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR GEORGE AUCHINLECK OF BALMANNO.

Agnes Lichtoun
v.
Archibald Stewart

Date: 2 February 1632

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Umquhile Andrew Lichtoun, his son James went furth of the country divers years before his father's decease; and a daughter called Agnes, which daughter supposed her brother to be dead, and served herself heir to her father in a tenement of land, and she, as heir, pursues her father's relict, for exhibition and delivery of the writs. Compears Archibald Stewart, who alleges, The writs should be delivered to him; because he has a disposition and assignation of the said tenement made to him by the said James, who (albeit he was supposed to be dead,) is yet living; and, by a procuratory subscribed by him in Queensbridge, is served and retoured heir to his father. It is replied, That this procuratory verifies not him to be in life, or to have been living when he was served heir; for it may be some other supposititious person, calling himself James Lichtoun, son to Andrew, has made this procuratory and disposition to Archibald Stewart; and so the sister's retour standing, must be reduced. The Lords found no necessity of a reduction; but, that the user of the procuratory, whereupon the retour proceeded, should prove clearly, by testificates from the magistrates where he remained, or depositions of famous witnesses who knew the said James Lichtoun that he was living the time of the service.

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